Sharvan Kumar Pandey vs The State Of Bihar and Anr

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.3978 of 2019
Arising Out of PS. Case No.-106 Year-2015 Thana- HATHUA District- Gopalganj
======================================================
Sharvan Kumar Pandey Sri Kant Pandey Resident of Mohalla-A- 276,
Block-A North Vinod Nagar, P.S.- Mandawali, New Delhi.
... ... Petitioner
Versus
1. The State of Bihar
2. Surendra Nath Pandey Late Mahadev Pandey Resident of Village-
Gilwaniya, P.S.- Kutaiya, Distt.- Gopalganj.
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr.Mukesh Kumar No1. Advocate
For the Opposite Party/s : Mr.Ashok Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 20-07-2026
Heard learned counsel for the petitioner and learned
A.P.P. for the State.
2. The present quashing petition has been filed for
quashing the impugned order dated 13.07.2018 passed by
learned Chief Judicial Magistrate, Gopalganj in connection
with Tr. No. 1640/18 arising out of Hathua P.S. Case No.
106 of 2015 registered for the offences punishable under
Sections 420 & 379 of the I.P.C. and Section 66(C) of the
Information Technology Act, whereby and whereunder on
application of accused Rahul Kumar Jha, learned C.J.M.
issued summon against the petitioner to face the trial under
Section 319 of the Code of Criminal Procedure.

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3. The brief facts of the case is that as per FIR,
informant alleged that Rs. 11,00,000/- has been withdrawn
in between 30.04.2015 to 22.06.2015 by the IRCTC from
his Bank Account No. 11453719697, of State Bank of India,
Hathua Branch. It is alleged that informant is a retired
teacher and when he came to the Bank and verify his
account, then, he came to know that fraud which has been
committed with his account.
4. On the basis of aforesaid written report, above-
mentioned First Information Report has been lodged with
Hathua Police Station. After lodging the FIR, police started
investigation and submitted charge-sheet only against co-
accused Rahul Kumar Jha for the offences punishable under
Sections 420 & 379 of the I.P.C. and section 66(C) of the
I.T. Act and investigation was kept pending to verify the I.P.
address and on other points. Thereafter, learned trial court
took cognizance only against accused Rahul Kumar Jha for
the offences under sections 420 & 379 of the I.P.C. and
Section 66(C) of the I.T. Act.
5. Learned counsel appearing on behalf of the
petitioner submitted that after taking cognizance the trial of

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this case begins with Tr. No. 1640/18 before the court of
learned CJM, Gopalganj, where altogether seven (7)
prosecution witnesses were examined and out of seven
prosecution witnesses, this petitioner was also examined as
PW-7 on 03.04.2018.
6. It is pointed out that none of the prosecution
witnesses, PW-1 to PW-6 named this petitioner qua his any
involvement with the crime in question during the trial and
this petitioner was examined as prosecution witness No.7,
for the reason that he was the distributor of Cable Internet
Connection through his company namely, M/s ANI
Network Pvt. Ltd. to co-accused Rahul Kumar Jha, who
alleged to misappropriate the amount of Rs. 11 Lakhs from
the account of the informant for purchasing railway tickets
and, thereafter, transferring the amount to his own account
after cancellation of purchased railway tickets. It is
submitted that co-accused Rahul Kumar Jha was not
examined before the learned trial court in view of section
315 of the Cr.P.C., rather he made one application before
the court of learned CJM, Gopalganj on 03.04.2018, stating
therein that this petitioner may be summoned as an accused,

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which was allowed by the impugned order dated
13.07.2018.
7. At this stage, it would be apposite to reproduce the
impugned order dated 13.07.2018, which are as under:
“
U;k;ky; eq[; U;kf;d n.Mkf/kdkjh xksikyxat
fopkj.k la0 1640@2018
jkT; cuke jkgqy dqekj >k
th0vkj0 1864@15
ch0 1640@18
U;k;ky; eq[; U;kf;d n.Mkf/kdkjh xksikyxat
fopkj.k okn la0 1640@18
13-07-18 dkjk/khu vfHk;qDr dks dkjk ls izLrqr fd;k x;k gSA izLrqr vkosnu dkjk/khu
vfHk;qDr jkgqy dqekj >k dh vksj ls vUrxZr /kkjk 319 na-iz-la- bl vk”k; dk izLrqr
fd;k x;k gS fd Mk;jh ds iSjk ua-51 oks 70 ds voyksdu ls Li’V gS fd bl dsl ds
eq[; vfHk;qDr Jo.k dqekj ik.Ms; gS] tSlk fd dkaM nSfudh ds iSjk 70 esa vijk/k bdkbZ]
iVuk ds Kkikad 299@”kk- dk Kkikad vijk/k bdkbZ ¼lkbcj lsy½ dk dk;kZy;] fcgkj
iVuk ds fnukad 09-06-16 ls ,l-ih- xksikyxat ds uke dk izfrosnu izkIr gqvk Fkk fd
fVdVksa dh cqfdax voS/k :i ls oknh ds [kkrk ls dh xbZ Fkh rFkk VªkatsD”ku fMVsy esa
mfYyf[kr Vh-ih-,M ds fy, ;wtj fMVsy gsrq ,vjVsy] cksMkQksu ,oa vkbZfM;k dks Hkstk
x;k gS ftlesa bZ&esy ds eksckbZy fMVsy miyC/k djk;k x;k gSA ftlesa ,usDLpj 3 ist
la- 151 ls 153 esa uke Jo.k dqekj irk& ,- 276,- CykWd ukFkZ fouksn uxj ik;k x;k
gSA dsl Mk;jh ds iSjk&51 esa gh Jo.k dqekj ik.Ms; ,oa [kxsUnz izlkn dh lafyIRrk gksus
dk Ik;kZIr lk{; gSA bl vk/kkj ij vfHk;qDr ds }kjk vuqjks/k fd;k x;k gS fd mijksDr
dkaM esa xgjkbZ ls tkap dj nksuksa vfHk;qDr Jo.k dqekj ik.Ms; rFkk [kxsUnz izlkn dks
/kkjk 319 na-iz-la- ds vkyksd esa vfHk;qDr cukus dh d`ik dh tk,A
vkosnu dh dkWih ftyk vfHk;kstu inkf/kdkjh dks izkIr djk;k x;k gS ftlesa ftyk
vfHk;kstu inkf/kdkjh ds }kjk vfHk;qDr ds vkosnu dk dksbZ fojks/k ugha fd;k x;k gS rFkk
U;k;ky; dks crk;k x;k gS fd lg vfHk;qDr ds fo:) vuqla/kku yfEcr gS rFkk
dkjk/khu vfHk;qDr jkgqy dqekj >k ds fo:) izLrqr dsl Mk;jh Fulty funtory rFkk
iw.kZ ugha gSA le; lhek ls cpus ds fy, iqfyl ds }kjk vuku&Qkuu esa tYnhcknh djrs
gq, fcuk oSKkfud rFkk rkfdZd <ax ls vuqla/kku dks iw.kZ fn[kkrs gq, vkjksi i= dkjk/khu
vfHk;qDr ds fo:) lefiZr fd;k x;k gSA ,slh fLFkfr esa vU; vfHk;qDRkx.k tks dkjk/khu
vfHk;qDr ds lg;ksxh gS tks dze”k% Jo.k dqekj ik.Ms; rFkk [kxsUnz izlkn dks Hkh
vfHk;qDr cukuk tkuk vko”;d gS D;ksafd nksuks vfHk;qDrksa ds fo:) i;kZIr lk{; miyC/k
gSA
mHk;i{kksa ds fo}ku vf/koDrkvksa ds rdksZa dks lquk x;k rFkk vfHkys[k dk voyksdu fd;kA
ftlls Li’V gksrk gS fd dkjk/khu vfHk;qDr jkgqy dqekj >k ds fo:) fnukad 30-10-16
dks vkjksi i= lefiZr fd;k x;k gS rFkk vU; vfHk;qDrksa dks vkbZ-ih-,-Mh-th- ds lR;kiu
ds fy, iqjd vuqla/kku tkjh j[kk x;k gSA vfHkys[k ij miyC/k ekSf[kd rFkk nLrkosth
lk{; ds voyksdu ls Li’V gS fd bl dsl esa Jo.k dqekj ik.Ms; rFkk [kxsUnz izlkn ds
fo:) Hkh izcy lk{; miyC/k gSA ftlds vkyksd esa bu vfHk;qDrksa dk fopkj.k fd;k
tkuk U;k;fgr esa vko”;d gSA
mijksDr rF;ksa ,oa ifjfLFfr;ksa ds vkyksd esa dkjk/khu vfHk;qDr jkgqy dqekj >k dh vksj
ls izLrqr vkosnu /kkjk 319 na-iz-la- Lohd`r fd;k tkrk gSA dk;kZy; vfHk;qDRkksa dh
mifLFkfr gsrq lEeu fuxZr djsaA vfHkys[k fnukad 27-7-18 dks izLrqr djsaA
ys[kkfir

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g0@&
eq[; U;kf;d n.Mkf/kdkjh ”
8. It would further be apposite to reproduce Section
319 of the Cr.P.C., which reads as under:
“319. Power to proceed against other persons appearing
to be guilty of offence.— (1) Where, in the course of any
inquiry into, or trial of, an offence, it appears from the
evidence that any person not being the accused has
committed any offence for which such person could be tried
together with the accused, the Court may proceed against
such person for the offence which he appears to have
committed.
(2) Where such person is not attending the Court, he may be
arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court, although not under
arrest or upon a summons, may be detained by such Court
for the purpose of the inquiry into, or trial of, the offence
which he appears to have committed.
(4) Where the Court proceeds against any person under sub-
section (1), then—
(a) the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may
proceed as if such person had been an accused person when
the Court took cognizance of the offence upon which the
inquiry or trial was commenced.”
9. Learned counsel also relied upon ‘ Para 7’ of the
legal report of Hon’ble Supreme Court as available through
Neeraj Kumar @ Neeraj Yadav Vs. State of U.P. & Ors.
reported in 2025 SCC OnLine SC 2639, which reads as
under for better appreciation of the legal position in
connection with issuance of summon under section 319
Cr.P.C. :-

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“ 7. It is no longer res integra that the power conferred under this
Section is extraordinary and discretionary in nature, intended to be
exercised sparingly and with due circumspection. While invoking
it, the Court must be satisfied that the evidence appearing against
the person sought to be summoned is such that it prima facie
necessitates bringing such person to face trial. The degree of
satisfaction required is higher than that warranted at the stage of
framing of charge, yet short of the satisfaction necessary to record
a conviction. Such satisfaction must rest on cogent and credible
material brought on record during the trial, and not based on
conjectures or speculations. In this regard, reference to a few
judicial pronouncements of this Court would be apposite.
7.1. The Constitution Bench of this Court in Hardeep Singh v.
State of Punjab [(2014) 3 SCC 92] extensively discussed the
power conferred under Section 319 CrPC. Relevant part is
extracted hereunder:
“ 90. … all that is required for the exercise of the power under
Section 319 CrPC is that, it must appear to the court that some
other person also who is not facing the trial, may also have been
involved in the offence. The prerequisite for the exercise of this
power is similar to the prima facie view which the Magistrate
must come to in order to take cognizance of the offence.
Therefore, no straitjacket formula can and should be laid with
respect to conditions precedent for arriving at such an opinion
and, if the Magistrate/court is convinced even on the basis of
evidence appearing in examination-in-chief, it can exercise the
power under Section 319 CrPC and can proceed against such
other person(s). It is essential to note that the section also uses
the words “such person could be tried” instead of should be
tried. Hence, what is required is not to have a mini-trial at this
stage by having examination and cross-examination and
thereafter rendering a decision on the overt act of such person
sought to be added. In fact, it is this mini-trial that would affect
the right of the person sought to be arraigned as an accused
rather than not having any cross-examination at all, for in light
of sub-section (4) of Section 319 CrPC, the person would be
entitled to a fresh trial where he would have all the rights
including the right to cross-examine prosecution witnesses and
examine defence witnesses and advance his arguments upon the
same. Therefore, even on the basis of examination-in-chief, the
court or the Magistrate can proceed against a person as long as
the court is satisfied that the evidence appearing against such
person is such that it prima facie necessitates bringing such
person to face trial. In fact, examination-in-chief untested by
cross-examination, undoubtedly in itself, is an evidence.
xxx
106. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court, not
necessarily tested on the anvil of cross-examination, it requires
much stronger evidence than mere probability of his

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complicity. The test that has to be applied is one which is more
than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the evidence,
if goes unrebutted, would lead to conviction. In the absence of
such satisfaction, the court should refrain from exercising
power under Section 319 CrPC. …
xxx
110. In Lal Suraj [ Lal Suraj v. State of Jharkhand , (2009) 2
SCC 696 : (2009) 1 SCC (Cri) 844], a two-Judge Bench held
that there is no dispute with the legal proposition that even if a
person had not been chargesheeted, he may come within the
purview of the description of such a person as contained in
Section 319 CrPC. A similar view had been taken in Lok Ram
[ Lok Ram v. Nihal Singh , (2006) 10 SCC 192 : (2006) 3 SCC
(Cri) 532 : AIR 2006 SC 1892], wherein it was held that a
person, though had initially been named in the FIR as an
accused, but not charge-sheeted, can also be added to face the
trial. …. …… ……”
10. In view of aforesaid, it is clear that only on the
basis of evidences as surfaced during any inquiry or trial
of an offence, a summon can be issued to any person not
being accused has committed any offence for which such
person could be tried together with the accused.
11. In the present case, summon was not issued
against petitioner on the basis of evidences surfaced during
the trial. None of the prosecution witnesses have said
anything incriminating during the trial against this
petitioner, rather petitioner himself examined as PW-7.
Interestingly, on the basis of petition of accused only,
otherwise having all opportunity to examine himself on oath
under section 315 of the Cr.P.C., this petitioner was

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summoned as an accused through impugned order, which is
a perverse finding contrary to the settled position of law.
12. In view of aforesaid and by taking legal report of
Hon’ble Apex Court in Neeraj Kumar ’ case (supra), the
impugned order dated 13.07.2018 as passed by learned
Chief Judicial Magistrate, Gopalganj in connection with
T.R. No. 1640/2018 arising out of Hathua P.S. Case No. 106
of 2015, is hereby quashed and set-aside qua petitioner.
13. Accordingly, this quashing petition stands
allowed.
14. Let a copy of this judgment alongwith TCR, if
any, be sent to the learned trial court.

(Chandra Shekhar Jha, J.)
Rajeev/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 20.07.2026
Transmission Date 20.07.2026